Vision for changethe communications white paper could signal exciting times ahead for television lawyers.

JON ROBINS SWITCHES ONTO this exciting practice area

L ast month the television industry had its first glimpse of what the culture secretary Chris Smith has in store for its future with the publication of his communications White Paper.

The immediate response of many commentators was that the recommendations added up to little more than a vague vision and hardly the 'blueprint for a digital age' as promised.

'It looks forward to things that might happen but there's no great revolution,' says Simon Westrop, the former head of compliance and legal affairs at Carlton Television who joined Birmingham firm Wragge & Co last October and is an associate in its media group.

At the heart of the reforms is the creation of Ofcom, a super regulator that will cover television, radio and the Internet.

'I suspect that the industry was somewhat disappointed with the White Paper,' Mr Westrop says.

'While it provides, through Ofcom, the framework for change it doesn't actually open the gate to change.'One reason for caution is a likely election in May.

'Nobody wants to act too dangerously,' Mr Westrop explains.The White Paper avoided a showdown with broadcasters, allowing BBC governors to retain their powers to police the corporation.

The path has been cleared for a single ITV, while Channel Four has won its fight against privatisation.

The government might not be taking any risks; however there is still plenty for television lawyers to digest.

So, what does a TV lawyer actually do? Michael Ridley, a partner at Denton Wilde Sapte who specialises in film and television, breaks the work down into three parts.

First, there is 'what is on the screen' which comprises the distribution work; then there is 'how the picture is delivered' which covers carriage arrangements; and finally there is 'the business behind the show', which is the corporate work.

According to Nigel Bennett, a partner at London-based niche media practice Simkins Partnership, which has a strong TV client base, lawyers in this field need a sound understanding of company law, copyright, the regulatory background, and common sense.

In his view, making a television programme is the same as 'any other commercial product'.He says: 'You have to acquire the raw material, which in this case happens to be intellectual property rights and talented individuals, and then you have to finance the production, produce it, and sell it.'For those firms that focus on independent production work, the White Paper is not uppermost in their minds.

Media specialists Lee & Thompson in London advise production companies such as Monogram Productions ('The Russian Bride' for ITV) and Red Production ('Queer as Folk' for Channel 4).

Partner Jeremy Gawade says there has been a period of consolidation after so many companies started up in response to the arrival of digital and satellite television.'The days of having hundreds of different production companies have passed,' he says.

'The bigger companies get the bigger commissions - and they have had to consolidate in order to survive.' One downside to the creation of so many new channels is the advent of low budget programming.

'You have to be commissioned to do a year's run to make it worthwhile because the budgets are so small,' he says.

Medwyn Jones, a partner in the film and TV department at media firm Harbottle & Lewis, estimates that 60% of his time is spent on production work.

He reckons that over the last ten years there has been an increasing focus on finances as funding arrangements have become more complex.

'Until recently almost everything in the UK was done on a full commission basis,' he says.

'The broadcaster would commission the whole of the budget and take the rights of the programme.' Now production companies are keen to keep hold of their rights and organise funding from a variety of sources.

The firm's clients include Ecosse Films ('Monarch of the Glen'), Tiger Aspect, and Talkback.

Another recent feature of finance work has been the success of sale and lease back, which is a tax-based incentive scheme introduced by the government in 1998 to allow companies to raise 10% of their budget for production costs.

Mr Jones estimates that his firm will have done 50 such deals by the end of the year.

The scheme is to be reviewed in July 2002 and there is some doubt as to whether it will be continued.

According to Mr Gawade, the government did not anticipate how much business would be involved and now the Inland Revenue has become 'a bit wary of it'.

'The independent sector has been tremendously profitable and successful for lawyers,' says Ruth Gladwin, a London-based sole practitioner who acts mainly for production companies such as Vera Productions ('Mark Thomas Product' for Channel 4).

'The key thing for lawyers is that they build up close relationships with their clients and their clients become quite dependent on you.'Ms Gladwin set up her own practice last September after deciding not to return to Finers Stephens Innocent following maternity leave.

'I felt confident and the market was buoyant enough to take a plunge and I haven't regretted a single minute.' In her line of work, she is particularly involved in protecting the format rights of her clients.

'Producers get very uptight and fight very hard with the broadcasters to try and retain the format or some interest in the format so the programme can be sold and they'll get something for it,' she says.

After all, as she points out, it could be the next 'Who Wants to be a Millionaire?'.

Not surprisingly, the White Paper also has something to say about independent producers.

According to Stephen Edwards, a partner in City firm Richards Butler's media and entertain-ments group, the paper touches upon what it means to be 'independent'.

As producers have grown and become part of larger media groups, they have lost their independent status.

Broadcasters are required to ensure that one quarter of projects go to the independent sector and, consequently, if the status changes they lose out onContinued on page 28Continued from page 25commissions.

'Some producers have lost their independent status half way through the production process and the broadcasters cannot classify those particular programmes as independent,' Mr Edwards says.The paper addresses this in part by proposing that the status might be assessed and judged at the time when the programme is commissioned, rather than when transmitted as happens now.

But he adds that there are other 'more radical' solutions that need to be looked at, such as revisiting the narrow definition of independence.It is the broadcasters who are first in the reformers' sights.

'The whole of the White Paper will have an impact in many material ways,' says ITV's controller of legal and business affairs Simon Johnson.

'There is something in every bit of the paper that we will have to give a response to.' Not least is the move to a single ITV, as envisaged by the scrapping of the technical hurdles preventing such a consolidation of the regional companies.

The paper proposes abolishing the rules which prohibit any ITV company owning more than 15% of the total audience and forbid one company owning both the London weekday and weekend franchises.

Only ordinary competition law stands in the way of a single ITV company.

According to Mr Johnson, the shareholders of ITV view it as 'a positive step'.

He says: 'They feel that it will allow the business to come together more effectively by having a single focus for decision-making.' Richards Butler has a long-standing connection with the BBC.

There was much speculation that the government had wanted to end the BBC's self-regulatory powers and make its governors accountable to an outside body.

But in the end, they held on to their powers to regulate the corporation.

As Mr Edwards points out, the key issue for the broadcaster is the creation of Ofcom to replace the Independent Television Commission (ITC).

'Up to now the BBC has been effectively regulated by Royal Charter but that has been for the governors to implement,' he says.

'Now, it is going to be substantially like the rest of the TV industry.' The new super regulator would swallow up the ITC and the Radio Authority.

Wragges' Mr Westrop hopes the new body will bring clarity to the confusing regulatory system: 'Everybody has universally welcomed the changes [the White Paper] has introduced in the central and content regulation side and doing away with the rather complicated multiple regulatory system.' It is a theme that Sue Charles, partner in the media and communication group at City firm DJ Freeman, also takes up.

It is proposing a different form of regulation rather than changing the content of regulation of the existing regulators.

'So the codes [of conduct] won't necessarily change drastically but it will be easier because there will be one body to look after the media industry that will run across TV, radio and new media.' DJ Freeman represents both Channel 4 and Channel 5.

According to Ms Charles, there was concern that their 'remit was slipping a little' and, in particular, that Channel Four was not concentrating as much as it should on appealing, for example, to ethnic minorities or disabled people.

'The government has reinstated those rather serious qualitative thresholds they will have to secure,' she says.At Denton Wilde Sapte, Mr Ridley is concerned about how the government plans to deal with the rapid convergence between television and print media.

As he points out, there is much in the White Paper about cross-media ownership, which prevents one company owning too many broadcasting and print media interests.

'People think of cross-media as being TV and newspaper companies but that's old hat,' he says.

'Clearly the future concern is the Internet and who are going to be the controlling voices out there.' He says the government has filed that particular issue in the 'too difficult box'.

It is a critical issue for his clients.

For example, the firm represented the retailer Sainsbury's in a joint venture with Carlton to launch a one-stop shop TV channel and an Internet portal.'The television industry is looking to widen its boundaries and bring in other businesses,' Mr Ridley says, adding that he anticipates many more joint ventures as the TV world continues to converge with the Internet.

He compares it with the early days of electricity: 'It was important but you could not possibly conceive of how important it was going to be.'Jon Robins is a freelance journalist